Introducing Interdisciplinary Perspectives on International Law and International Relations: The State of the Art

by Jeffrey Dunoff and Mark Pollack

[Jeffrey L. Dunoff is the Laura H. Carnell Professor of Law at Temple University Beasley School of Law and Mark A. Pollack is professor of Political Science and Jean Monnet Chair ad personam at Temple University]

We are very grateful to our friends at OJ for hosting this symposium, which we trust will continue the work begun in our recent edited volume, namely providing a critical assessment of the innovations and contributions, as well as the lacunae, biases and blind spots, of international law and international relations (IL/IR) scholarship. In this post, we kick off the discussion by providing a brief introduction to international law/international relations literature; discussing the motivation behind, and aims of, Interdisciplinary Perspectives on International Law and International Relations: The State of the Art; and identifying one significant conceptual shortcoming found in much IL/IR scholarship.

The Fall and Rise of IL/IR

The disciplines of international law (IL) and international relations (IR) both seek, albeit in different ways, to understand the causes and consequences of international cooperation, in general, and international legalization, in particular. Perhaps not surprisingly, then, for several decades prior to World War II, practitioners from both fields pursued common research interests.

However, the cataclysm of World War II brought this era of disciplinary convergence to a crashing halt. Influential political scientists, such as Morgenthau, Kennan and Carr, argued that state actions were driven by national interests, and that, as Kennan wrote, international law was “too abstract, too inflexible, too hard to adjust to the demands of the unpredictable and the unexpected” that mark international affairs. A dominant school of “realism” argued that “law,” as understood in the domestic sense, could not serve as a meaningful constraint on states’ pursuit of the national interest in an anarchic international system, and for many years thereafter IR scholars paid little attention to international law or international legal scholarship. One consequence was a decades-long mutual estrangement between the two disciplines.

This period of mutual neglect began to ebb only with the end of the Cold War, and the increased salience of international norms and institutions. Important papers by Ken Abbott (1989) and Anne-Marie Slaughter (1993) introduced international lawyers to key IR concepts and approaches, and called for interdisciplinary research. On the IR side, a special symposium issue of International Organization on “Legalization and World Politics” in 2000 signaled IR’s rediscovery of international law. These early papers triggered a substantial body of “IL/IR” scholarship that has made substantial contributions to our understanding of international legal phenomena. For example, IL/IR scholarship has greatly advanced our understanding of legal and institutional design, including the use of flexibility mechanisms; the roles and functions of international tribunals, including patterns of state behavior with respect to international litigation and the nature and determinants of judicial independence; and the puzzle of compliance, including in particular the causal mechanisms that enhance state compliance with legal norms.

Why this volume?

Notwithstanding its important contributions, the IL/IR literature to date has been highly “fragmented,” in at least two respects. First, much of this writing focuses on particular legal regimes, such as international trade or human rights. Second, and relatedly, many of these writings appear in specialized journals, focusing on either the law or the politics of topics such as trade or human rights. As a result, it is extraordinarily difficult to test whether insights generated in one field, such as investment, are applicable to another field, such as environment. It is also difficult to synthesize work across disciplines to distill larger lessons.

Our volume is an effort to “take stock” of this literature, and in particular to distill what IL/IR has taught us about the making, interpretation and enforcement of international law. To do so, we commissioned leading contemporary IL and IR scholars to produce original essays that survey, synthesize, and push forward the existing literature. Following an introductory section, the book is organized into four cross-cutting, thematic sections:

Theorizing International Law – this section focuses on the development and application to international law of four leading intellectual traditions in IR: realism, institutionalism/rational design, liberalism and constructivism.

Making International Law – this section surveys scholarship on the design of international agreements, including the use of flexibility mechanisms, as well as important changes in the actors and fora involved in international lawmaking, including the changing roles of non-state actors, the rise of regulatory networks, and the problems associated with fragmentation/regime complexity.

Interpreting International Law – this section addresses the interpretation and application of international law by international tribunals, domestic courts and various non-judicial bodies. It includes both qualitative and quantitative studies of the delegation of interpretative authority to international tribunals, as well as the behavior and independence of these bodies.

Compliance with International Law – this section includes chapters that address the compliance with, enforcement, and effectiveness of international law. Until recently, compliance was a relatively neglected subject, with legal scholars often assuming international law’s efficacy, and political scientists assuming its ineffectiveness. IL/IR studies have advanced our understanding of such issues both theoretically, by distinguishing different causal mechanisms for compliance, and methodologically, by devising increasingly fine-grained measures of state compliance with international law.

A final section includes a chapter by Anne-Marie Slaughter, who reflects on the utility of IL/IR research from the perspective of a practicing government official, and a concluding chapter where we attempt to distill lessons learned. Our hope is that, taken as a whole, the papers in this volume provide a comprehensive overview of IL/IR’s distinctive contributions, and help chart a path for future research.

What’s Right, and What’s Wrong, with IL/IR Scholarship?

As mentioned above, our goal in this project was to “take stock” of two decades of IL/IR literature, and our balance sheet is largely positive. IL/IR scholarship, we find, has generated new and systematic insights into subjects such as the design of international legal agreements, the behavior and independence of international courts, and the determinants of and causal mechanisms underlying state compliance with international law. These and other contributions will, indeed, feature among the posts in this symposium.

Nevertheless, it was not our intention to uncritically celebrate IL/IR writings, and we devote significant attention to the conceptual and epistemological difficulties that accompany efforts at interdisciplinarity, as well as the substantial blind spots and gaps we see in the literature. For current purposes, we highlight one important and under-appreciated weakness in IL/IR writing, which we label the problem of asymmetrical terms of trade between the two disciplines.

The three canonical articles mentioned above – as well as much of the subsequent literature reviewed in the book – all call for interdisciplinary scholarship, yet in practice the intellectual terms of trade between IR and IL have been highly unequal, with most IL/IR writings involving the application of theories and methods from the discipline of international relations to the study of international law as a subject. Indeed, a recent – and superb – overview paper by Hafner-Burton, Victor and Lupu in the American Journal of International Law is structured in exactly the same way, as it offers “a fresh look at what political science has learned that may be of special interest to lawyers.”

When we presented this claim at a workshop on our book, a leading IR scholar responded with very simple question: So what? The goal of IL/IR scholarship, she pointed out, was not to generate an even intellectual balance of trade, but to better understand and explain international law. An intellectual trade imbalance is not intrinsically a problem; it is only a problem if it causes us to miss opportunities to advance our understanding of international legal phenomena. In short, this scholar posed an important challenge: what can IR learn from IL?

We have been developing a response to this this underexplored issue (see here for one early effort). For now, we’ll simply suggest that, in ignoring fruitful conceptual approaches developed by international lawyers, IL/IR has operated at a self-imposed handicap and as a result has not completely fulfilled its promise. In a subsequent post, we’ll explore this issue in greater detail, and suggest some potential fixes. In the meantime, we look forward to what promise to be very exciting exchanges over the next several days.

2 Responses

One major “blind spot” for some from each general focus concerns the failure of some to recognize the fact that there have been several formal actors in the international legal process other than the “state” (e.g., nations, peoples, tribes, cities, belligerents) and that international law has never been merely state-to-state. See, e.g., http://ssrn.com/abstract=1701992 . It is still shocking to see some claim that “traditional” international law was merely state-to-state (e.g., the West Nutshell on Public Int’l law — which contains some other errors, e.g., re: practics and opinio juris merely by “states” and a minority view about a “persistent objector” that does not have direct support in the ICJ case cited, which was a boundary, adverse possession-type inquiry re: title by prescription vs. interruption thereof)
It will be useful for those with either focus or both to also consider the real roles of formal as well as informal actors in the international legal process — a Realist concern. see also http://ssrn.com/abstract=2293188 re: Realist insights re: the Nature and Sources of international law.

9.16.2013
at 10:52 am EST Jordan

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